Appellate Toolbox 4: Motion to Strike

“ O, sir, to wilful men

  The injuries that they themselves procure

  Must be their schoolmasters.”

-      King Lear II, 4; Regan to Lear

         Another valuable item in the appellate practitioner’s toolbox is the Motion to Strike. If your opponent improperly brings matters before the court, don’t hesitate. Move to strike.

        In 2022, we represented the Defendant/Appellees in Blue v. Church of God Sanctified, Inc., No. M202100244COAR3CV, 2022 WL 2302263 (Tenn. Ct. App. June 27, 2022), which involved a church property dispute. Our opponents included as an appendix to their principal brief a response to a Rule 7(a) Motion to Stay.

       We moved to strike these additional factual allegations in the Court of Appeals, asserting that this was a procedurally improper and backdoor attempt to have the appellate court consider factual allegations that were not before the trial court when it ruled on summary judgment. The Court of Appeals granted our motion, observing that  “ through this. . . inclusion of the materials in an appendix to its brief, Local Church has sought to have this Court consider post-judgment facts without filing a motion to do so pursuant to Tennessee Rule of Appellate Procedure 14.” Id. at *9.

     A motion to strike may be used in the Court of Appeals to strike any improper argument, including scurrilous attacks on you or your client, or anything else that should not be considered by the Court of Appeals.

Pay attention. When the iron is hot, move to strike.